Bombay HC strikes down amended IT rules

Contact Counsellor

CategoryPolity

Last Updated23/09/2024

The revised rules violate right to equality and freedom of speech guaranteed by Constitution, says ‘tie-breaker judge’; they had empowered the Centre to set up a fact check unit to identify ‘fake’ news

On Friday, the Bombay High Court invalidated the amended Information Technology Rules, 2023, which granted the Centre authority to establish a Fact Check Unit (FCU) to identify fake, false, and misleading information about the government on social media platforms.

Earlier, a Division Bench of Justices Gautam Patel and Neela Gokhale had delivered a split verdict on January 31, 2024, leading to the appointment of a "tie-breaker" judge, Justice Atul Sharachchandra Chandurkar. Justice Chandurkar ruled that the amended rules violated fundamental rights under Article 14 (right to equality), Article 19 (freedom of speech and expression), and Article 19(1)(g) (right to profession) of the Constitution.

Justice Chandurkar criticized the vague use of terms like "fake, false, and misleading" in the rules, which lacked clear definitions. He argued that the ambiguity of these terms could create a "chilling effect" on intermediaries.

In April 2023, the Ministry of Electronics and IT (MEiTY) amended the IT Rules, 2021, to establish the FCU. The decision was challenged by political satirist Kunal Kamra, the Editors Guild of India, and other media associations, citing concerns over free speech and vagueness.

January 2024: The split verdict had Justice Patel ruling in favor of the petitioners, deeming the FCU unconstitutional, while Justice Gokhale upheld the amendments. The matter was then referred to Justice Chandurkar.
March 2024: The Supreme Court stayed the government’s notification establishing the FCU.
July 2024: Solicitor-General Tushar Mehta, defending the FCU, argued that it was essential for combating misinformation, claiming it was a "least restrictive method" to tackle fake news.

Senior advocate Navroz Seervai, representing the petitioners, stressed that there were already existing mechanisms like the Press Information Bureau to address fake news. He argued that the government failed to demonstrate how the absence of the FCU caused any harm, supporting the case for interim relief.

Under the amended IT Rules, social media platforms like Facebook, X (formerly Twitter), Instagram, and YouTube could be compelled to remove content related to the government if flagged as "fake" by the FCU. Non-compliance by these platforms could lead to the loss of their safe harbour protection under Section 79 of the IT Act, 2000.

Digital rights groups welcomed the ruling, expressing relief over the annulment of the FCU. Mishi Choudhary, founder of the Software Freedom Law Center, stated that fact-checking should be handled by independent media, not the government.
The Internet Freedom Foundation, which supported the challenge, praised the judgment as a victory for free speech. Comedian Kunal Kamra also voiced his support for the ruling, reaffirming his commitment to upholding the Constitution.